A Postcard from the Supreme Court

US trial lawyer Reuben Guttman weighs in on the Supreme Court's deadlock in Rebecca Friedrich's lawsuit against the California Teachers Association.

Brandon Bourdages

For all the fanfare surrounding the much awaited opinion by the Supreme Court in a case that would have signalled the death knell for public employee labour unions in the US, if not the beginning of the end of large labour unions in general, the 29 March decision in Friedrichs v. California Teachers Association came almost in the form of a one-line postcard from the Supreme Court: ‘The Judgement is affirmed by an equally divided court.’

The Friedrichs case involved a First Amendment challenge to public employee labour agreements requiring all members of the bargaining unit to pay – at minimum – an ‘agency’ fee to the union calculated on the estimated cost of union representation. Those employees who actually choose to participate in the union, as members, pay dues – i.e. a higher fee – which may also include the cost of political activity or activity not directly related to representation.

Contracts between unions and public employers requiring all workers to pay at least the agency fee enables the union to secure a guaranteed revenue stream without having to task union organisers to sign up each employee as a union member. In the public employee setting, this eliminates a major transactions cost because state and municipal contracts cover tens if not hundreds of thousands of workers spread across a myriad of locations.

As a practical matter, many large ‘International Unions’ represent workers in both the public and private sectors. As union density in the private sector has diminished over the past several decades, major unions including the Service Employees International Union, Operating Engineers and even the Teamsters have broadened their representation of public sector workers as a hedge against dwindling private sector membership. At the same time, unions have become very strategic about their political operations as a means of electing public sector bosses who will not be completely antagonistic to labour objectives at the bargaining table.

The Friedrichs case, of course, marked an attack on organised labour’s tactical expansion into the public sector and a win would have hit labour hard in the pocket book.

The case was argued on 11 January 2016, before the death of Justice Scalia. A reading of the argument transcript provides insight into how he would have voted. Early on in the argument, Justice Scalia asked the petitioner’s counsel, Michael Cravin, the following question, which telegraphed his views: ‘Mr Cravin, is it okay to force somebody to contribute to a cause that he does not believe in?’

I talked with Jon Karmel, one of the nation’s most prominent union-side labour lawyers, and he had this to say: ‘The most important and feared labour union case to reach the Supreme Court in years came to an unceremonious and inconclusive end. In a post-Scalia predictable four-to-four split, and with no explanation, the Supreme Court left intact for now a Ninth Circuit summary affirmance of the right of public sector unions to charge non-members ‘agency fees’. Before Justice Scalia's death, the labour movement was preparing for a 5-4 decision overturning years of Supreme Court precedent, most notably Abood v. Detroit Bd. Of Ed., 431 U.S. 209, 232 (1977), allowing public-sector agency shops.’

The 4-4 deadlock means that the decision of the Ninth Circuit is affirmed and for the moment unions are safe. Undoubtedly, as time passes, and with the Supreme Court nomination of Appeals Court Judge Merrick Garland stalled in the Senate, the decision in Friedrichs may be remembered more for the deadlock than for its direct impact on labour.